Diana Trochez has filed a petition with Utah's high court that she hopes will allow immigrants living in the U.S. without legal permission to earn admittance to the state bar. (Photo: Kyli Summerhays for Law360)
It wasn't until her second year of law school that Diana Trochez realized she wouldn't be able to take the bar exam.
A native of Honduras and a recipient of the Deferred Action for Childhood Arrivals program, Trochez had managed to put herself through Brigham Young University and then enroll in BYU's J. Reuben Clark Law School, despite being ineligible for federal or state financial aid.
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"I was shocked," she said.
Like many states, Utah doesn't admit individuals without legal immigration status to the state bar. Trochez was willing, however, to try to change that.
Through a petition pending before Utah's high court, Trochez and a fellow DACA recipient are hoping to build on a groundbreaking case in California that paved the way for unauthorized immigrants to earn admittance to the bar. If approved, Utah would join a small but growing group of states allowing these immigrants to practice law.
The shift among state bar associations reflects a broader awareness of unauthorized immigrants in America and a general evolution in how society views them, says Kevin Johnson, dean of the University of California, Davis School of Law.
"We're seeing undocumented immigrants in colleges, we're seeing undocumented immigrants in law schools," he said. "These cases kept percolating and it finally hit the right time where the state bars and our society were beginning to grapple with some of these issues ... and to begin to think more in a sophisticated way about undocumented immigrants."
Johnson says state bars and legal employers are increasingly recognizing the value of a diverse workforce, including unauthorized attorneys, noting that clients benefit from a broad range of attorney experiences.
But while advocates say bar admission should hinge on a lawyer's competency and not immigration status, opponents argue that unauthorized immigrants lack the appropriate standing to become practicing attorneys because they are in the country illegally.
This debate is taking place against a backdrop of the Trump administration's implementation of hard-line immigration policies and a broader uncertainty about the status of DACA recipients like Trochez.
The U.S. Supreme Court in June agreed to consider Trump's rollback of the DACA program, casting a shadow over more than just unauthorized attorneys' arguments for bar admission. Some 800,000 DACA recipients could be impacted by the court's decision.
Trochez is now practicing as an attorney, thanks to California's rules for bar admission. If she is unable to renew her DACA status when it expires in December 2020, however, the 28-year-old faces revocation of her work authorization and protection from deportation.
"I try not to worry too much about it," she said. "But I would be lying if I told you I didn't worry a little."
Since Trochez passed the California bar exam, she can take advantage of a federal law that allows attorneys to practice immigration law in any state as long as they are licensed somewhere in the U.S.
She currently practices immigration law in Utah, working for a national pro bono legal services provider, but she wants a clearer path to handling other legal work in the state.
Last October, Trochez and another Utah law school graduate petitioned the Utah Supreme Court for the right to be admitted to the state bar. The pair argue that as DACA recipients they are authorized to work in the U.S. and shouldn't be ineligible for bar admittance solely due to their immigration status.
They have drawn support from the Utah attorney general's office, law professors, the American Bar Association, the American Civil Liberties Union and others. However, the federal government wants the court to strike down the petition.
The government argues the U.S. Department of Homeland Security's 2017 decision to rescind DACA means recipients are no longer lawfully present in the U.S. Therefore, it says, they cannot be granted a professional license unless the state Legislature — not a court — carves out an exception to a 1996 law banning state agencies from granting licenses to immigrants without legal residence in the country.
"It would not be prudent for the state of Utah to adopt a rule of eligibility based on the parameters of an exercise of enforcement discretion that DHS has concluded is unlawful and should, in any case, be abandoned," the government said in its March amicus brief.
"At a minimum, it would not seem advisable to take such a step before the courts resolve the pending challenges to DACA's rescission," the government added.
In Trochez's view, DACA remains in effect after the Ninth Circuit in November upheld a nationwide injunction against rescinding the program, though the Supreme Court's recent decision to consider the case has complicated that argument.
She is unsure what the Supreme Court case might mean for her petition in Utah, though she could still work independently no matter the outcome because it wouldn't impact her California license.
In the meantime, the Utah attorneys' case is expected to be placed on the state high court calendar later this summer. Although the court may elect to hear the case, it will likely wait while the U.S. Supreme Court decides the fate of the DACA program, according to Clerk of Court Nicole Gray.
New Mexico is another state that may expand access to the bar. It's currently mulling a rule change that would grant admission to any U.S. resident regardless of legal status who is otherwise eligible to practice law.
Maureen Sanders, an Albuquerque civil rights lawyer who led a group of lawyers proposing the rule change, says admission to the bar should be based on "character and competency," not immigration status.
"I find that particularly true for those who were young children when they came into the country and brought here by their family," she said. "They did not cross with an intention to violate the United States laws. They weren't old enough to make that decision."
New Mexico currently allows legal permanent residents or those with work authorization to apply for a law license, but a proposal filed with the state's Supreme Court in March 2018 would open the door to applicants who are not lawfully present in the country.
The state Board of Bar Examiners is still weighing the proposal and has yet to make a recommendation to the court. Of the roughly 120 public comments that attorneys and other stakeholders submitted to the court, about 20 percent want the petition denied.
"I understand the emotional underpinnings of this proposed change and I suspect that it may have been prompted by the limbo in which DACA individuals find themselves," New Mexico attorney Barbara Blumenfeld wrote in one such comment.
"Yet, we have all heard the saying: 'Compelling facts make bad law,'" she added. "It sets a very dangerous precedent to grant bar admission to those who are breaking at least one of the laws which they must also swear to uphold."
Setting the Bar
The petitioners in Utah and New Mexico are following in the footsteps of Sergio Garcia, the attorney who led the campaign for California to become the first state to pass a law or adopt a court rule allowing immigrants without legal status to be admitted to the bar.
It was his case that paved the way for successful bids in other states including Arizona, Florida, Illinois, Nebraska, New Jersey, New York, Oregon, Pennsylvania and Wyoming.
In 2009, Garcia graduated from law school, passed the California bar exam and began to practice law.
But just weeks later, officials discovered the Mexican immigrant had listed his immigration status as "pending" on his bar application. He had been approved for legal permanent residence in 1995, but due to a long backlog in the immigration courts, he was still waiting for his green card to be granted.
Because of the 1996 federal law restricting professional licenses to lawful residents, Garcia's law license was revoked. He took his case to the California Supreme Court.
While Garcia attracted the support of numerous bar groups and other organizations that said his immigration status shouldn't impact his eligibility to practice law, some urged the court to rule against him.
That included a retired prosecutor for the State Bar of California, Larry DeSha, who said in a court filing that Garcia "is not qualified to practice law because he continually violates federal law by his presence in the United States."
"He cannot take the oath of office nor can any authority administer the oath to him in good faith, until such time as his presence is legal," DeSha said.
DeSha also argued that allowing Garcia to practice could put clients at risk, in the event he is arrested or deported and can't fulfill his obligations.
In 2013, the court ruled that it was up to the state Legislature to decide Garcia's fate.
"As soon as I left the court that day, I started calling all my friends in the Legislature," said Garcia, who over the years had been in contact with lawmakers about his plight.
Less than a week later, the Legislature overwhelmingly passed a bill authorizing the state Supreme Court to admit qualified applicants not lawfully present in the U.S. to the state bar. After Gov. Jerry Brown signed the bill, Garcia became eligible to practice law on Feb. 1, 2014.
Garcia, who earned his green card in 2015 and became a naturalized citizen in June 2019, estimates that a dozen attorneys have been admitted to the bar in California as a result of his case.
Momentum and Uncertainty
Garcia's success had ripple effects. In April 2014, Florida passed legislation to permit immigrants without legal status who meet all requirements to gain entry to the state bar no matter their immigration status.
The following year, New York became the third state to allow unauthorized immigrants to practice law when the state appellate court ruled in a bar applicant's favor.
And in August 2017, the American Bar Association passed a resolution declaring that it "supports the principle that bar admission should not be denied based solely on immigration status."
Thomas Kim, an immigrant from South Korea and onetime DACA recipient who earned his green card this year, spearheaded the resolution during his tenure as secretary-treasurer of the ABA's Law Student Division. He says he became involved in the process in part to further his own chances of winning admittance to the bar in Oregon.
"My hope is eventually all of the state bars will take the same stance as ABA did and will let many undocumented law school students know that they are welcome to practice law," Kim said.
After Kim graduated from law school in 2018, he applied to the Oregon bar, which established a precedent by allowing him to become the state's first attorney without legal status. He is now an associate with Davis Wright Tremaine LLP in Portland, where he advises investors and businesses on corporate and financial matters.
The DACA case before the Supreme Court and the current political climate have left many attorneys without legal status wondering about their futures, even if they've won the right to practice law in the United States.
This includes Parthiv Patel, an immigrant from India whose DACA status is set to expire in April.
The 28-year-old was the first attorney without legal status in the U.S. to be admitted to the Pennsylvania and New Jersey bars. Now, Patel is an associate at New Jersey firm Parker McCay, where he focuses on commercial litigation and corporate law.
According to Patel, he and other similarly situated lawyers would likely have to stop working and face the possibility of removal if the Supreme Court overturns DACA and Congress fails to act.
"At that point, we have a ticking time bomb on our heads," Patel said.
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--Editing by Katherine Rautenberg.